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The Direct Threat Exception to the ADA: Avoiding A Hobson's Choice

By now, most employers are generally aware of the Americans With Disabilities Act, which requires employers not to discriminate against and to reasonably accommodate qualified individuals with a disability. This article will focus on one narrow exception to the reasonable accommodation requirement - the direct threat exception.

Accomodation Unless Dangerous

To introduce this exception, consider the following example. An employer hires a person as a short order cook. This job requires the cook to work with and around hot stoves and deep fat fryers. Once hired, the employee reports for work as scheduled, but soon after his start he has an epileptic seizure while working in the kitchen. The employee manages to find a safe place in the restaurant, and sits down until the episode passes.

Concerned, the kitchen manager asks the cook about this episode. The cook confirms that he is an epileptic, and admits that his medication can only lessen the intensity of the episodes - it cannot prevent them. The kitchen manager is worried, but the cook says he's worked at a number of restaurants, and that he has never suffered an injury or caused one to a fellow employee during an episode. Shortly after this meeting, the cook experiences another on-duty episode, but again manages to avoid harming himself or anyone else.

What can the manager do? The cook's epilepsy most likely is a disability covered by the ADA, which makes it illegal to discriminate against the cook because of his disability. Further, the ADA requires the manager to reasonably accommodate disabled employees.

Does this mean the restaurant must choose between violating the ADA by firing the cook (or moving him to another, safer job), and endangering the safety of the cook and his co-workers?

No. Fortunately, the ADA's direct threat exception allows the restaurant to transfer or even discharge the cook because of the dangers posed by his epileptic episodes. To prove that an employee is a direct threat to the health or safety of himself or others, an employer must consider four things.

  1. First, the employer must determine whether the nature and severity of the harm posed by the employee in question is serious.
  2. Second, the employer must decide if the risk could endure for a significant period of time; a one-time risk is not enough.
  3. Third, the employer must consider the likelihood that the harm threatened by the employee will occur (this factor counts less if the threatened harm is grave).
  4. Finally, the employer must weigh the imminence of the harm posed - that is, how suddenly it could occur.

Applicability of the Exception

Using our example, the cook poses a serious threat of harm to both himself and others, as an episode in the kitchen could easily lead to the cook burning or scalding himself, or causing another employee to suffer those harms by bumping into him. The second factor is also met, because this risk would be present every time the cook worked. The likelihood of the harm apparently isn't high - the cook didn't hurt anyone during his two episodes or in his previous jobs - but given the seriousness of the potential harm, this factor counts less. By contrast, the imminence of the harm is high, as the episodes come without warning and cannot be controlled.

Thus, the cook seems to present a direct threat to the health or safety of himself or others. As a result, the restaurant would not violate the ADA if it moved him to a safer job or let him go.

And that is the decision reached recently on these very facts by the U.S. Court of Appeals for the Eleventh Circuit, which covers Georgia, Florida and Alabama. As a side note, the court rejected the cook's claim that he did not pose a direct threat because he had previously worked in restaurants without incident, and did so after he was discharged by the defendant restaurant. In the Court's words, "[o]ne employer's willingness to bear the risk of harm does not constitute evidence rendering other employers liable under the ADA for their refusal to bear that same risk."

Be Careful

It is important to stress that the direct threat exception is a very narrow exception to the ADA. In addition, any direct threat assessment must be based solely on the facts of each individual employee's situation; you cannot use assumptions or stereotypes - such as "he's an epileptic, the court said the epileptic in the restaurant case was a direct threat, so this guy is too" - to make the decision.

Nonetheless, when you thoroughly and fairly assess the facts in light of the four factors listed above, and reasonably conclude the direct threat exception applies, you can invoke it and avoid choosing between ADA liability and potential tragedy.

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